http://www.dailypress.com/news/local/dp-36569sy0jan03,0,985132.story?coll=dp-new...

Experts urge improved suspect IDs
BY PATTI ROSENBERG
223-5686

January 3 2005

Police in Williamsburg and James City County have charged the wrong men with major crimes based on eyewitness IDs at least twice in the past 15 years - that they know of.

In one case, a 17-year-old from Norfolk was charged with robbing and shooting an Indiana couple in the Historic Area. A witness picked the teen's picture from photos police showed him, saying he was 100 percent certain the youth was one of the culprits.

The youth was already charged with stealing a car in Williamsburg on the same day the couple was attacked. Police also believed the gunman was left-handed - and so was the Norfolk youth.

When a Gloucester man turned in his son a couple of days later, police discovered they had arrested the wrong person.

"Thank God it didn't go that far," said Williamsburg police Maj. Jay Sexton, who was the lead investigator in the 1990 case. "That's the worst thing that can happen. You still have the guy who did it out there, and meanwhile, you've put an innocent man in jail."

In the other case, a 49-year-old Eastern State Hospital employee was accused of robbing, kidnapping and raping a motel desk clerk twice in a five-week period. Not only did the victim identify him as the stranger who brutalized her, but the man also had a prior conviction for sexual assault and drove a white car with a red interior, the type of vehicle the victim said her attacker drove.

DNA evidence eliminated the hospital employee as a suspect - after he'd spent five months in jail awaiting trial in 1991.

He was lucky. DNA evidence was so new that it had been used in Williamsburg-James City County Circuit Court for the first time just the year before. The man ultimately convicted of raping the desk clerk, based on the DNA evidence, received three life sentences plus 111 years.

Stories like these illustrate how unreliable witness identification can be, some experts say, although it often carries a lot of weight in the legal process.

"It's not unusual in an investigation to realize the wrong person has been picked up," said Hampton Commonwealth's Attorney Linda Curtis.

Mistaken eyewitness identification is the "major cause of wrongful convictions," according to the Innocence Project, which began at the Benjamin N. Cardozo School of Law in New York in 1992.

Gary Wells, a psychology professor at Iowa State University, has been studying eyewitness identification for more than 25 years. He believes that police should change how they conduct lineups.

Anyone who has ever watched a TV crime drama knows the drill: A detective asks the witness to look at suspects standing behind one-way glass and point out whether he or she recognizes any of them.

Real-life police rarely use live lineups these days, preferring the more efficient photo lineup, in which witnesses view a group of mug shots instead. Whether witnesses view a live lineup or a folder of mug shots, research shows that witnesses are three times as likely to pick out the wrong person when asked to look at a group of potential suspects simultaneously as when they see the suspects one at a time, Wells says.

When witnesses look at a group, there's a tendency for them to unconsciously pick the person they think looks the most like the suspect, Wells said. That's particularly dangerous if the real suspect isn't there, he said.

But viewing the suspects or suspect photos one at a time forces witnesses to make an independent decision about each, comparing the person to their memory of the assailant rather than to the other potential suspects, Wells said.

He also says the process should be double-blind, meaning the officer conducting the lineup should not know who the investigator considers the prime suspect. That eliminates the possibility of sending unconscious signals to the witness, Wells says.

Other researchers and the Innocence Project endorse those recommendations.

Police in Boston; Madison, Wis.; Minneapolis; Santa Clara, Calif.; and all of New Jersey have implemented the recommendations. Officials in North Carolina are encouraging police departments throughout the state to employ them, and several Illinois police departments are running pilot programs using sequential, double-blind lineups.

But most police and prosecutors on the Peninsula contacted for this story said they hadn't heard about these recommendations and didn't see a need for them.

Williamsburg-James City County Commonwealth's Attorney Mike McGinty said that in his experience, witnesses who aren't certain don't pretend otherwise.

However, Wells said research shows little correlation between being confident and being correct when it comes to witnesses identifying a suspect in a lineup.

Also, a defendant who is adamant about his innocence would be offered a polygraph test, McGinty said. No information about polygraph tests is admissible in court, but if the defendant passed the test, McGinty said, his office would consider withdrawing the charge - a scenario that he noted rarely occurs.

Maj. Stan Stout, commander of the investigations division in the James City County Police Department, was one of the few local law enforcement officials aware that some experts are calling for double-blind, sequential lineups and photo arrays.

It isn't something the department has discussed doing, and he hasn't had a chance to research the subject himself, Stout said. He has been waiting to see the courts begin issuing rulings about it.

Neither the Police Executive Research Forum nor the International Association of Chiefs of Police has taken a position on the issue. The U.S. Department of Justice publishes a guide on eyewitness evidence for law enforcement that outlines protocols for viewing suspects, whether sequentially or simultaneously, without endorsing either method as preferable.

Stout and other police spokesmen stressed that investigators always look for corroborating evidence, because they don't like to rely on eyewitness identification alone.

However, researchers say that in most cases where people have been falsely charged because of erroneous witness identification, police had also developed corroborating circumstantial evidence - as in the two cases in Williamsburg and James City in the early 1990s.

It's up to the judge or jury to evaluate how reliable a witness identification is, said Hampton chief prosecutor Curtis.

"There are some cases where it's the only evidence we have," she said. "It's not unusual to get a conviction on just an eyewitness identification."

Curtis and Newport News police Lt. Richard Lauderman, who is in charge of major crime investigations, say innocent people have been arrested in their localities, although they couldn't recall specific examples. Further investigation cleared them and charges were dropped before trial, both said.

In little more than a decade, 150 convicted felons in the United States have been exonerated by post-conviction tests of DNA evidence, according to the Innocence Project, which takes only cases in which those tests can prove guilt or innocence.

Many of those freed inmates were on death row or serving life sentences. Eight were convicted in Virginia. Such cases are disturbing to police, Lauderman said.

"It's shocking. We talk about it often. Can you imagine being the investigator who sent an innocent person to prison for 20 years?"

Copyright © 2004, Daily Press